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Considerations for Employees Returning to Work During COVID-19

July 22, 2020

By Noah R. Jordan, Esquire

As businesses begin, and continue, to reopen and the new school year is quickly approaching, many employees are facing the reality of returning to work amidst the COVID-19 pandemic.  Employees who are unable to work remotely understandably have concerns about returning to the workplace and many questions regarding their legal protections.  While each employee’s situation is different, the following is offered as a general guide for employees, both in the unionized and non-unionized settings, regarding some of their rights and the protections afforded to them.  Employees with specific concerns and/or questions should contact their union representatives, if they have them, or reach out to an attorney in the Rothman Gordon Employment Law department to discuss their circumstances in detail.

Collective Bargaining Agreements and Memoranda of Agreement/Understanding

Employees who are represented by unions are covered by a Collective Bargaining Agreement (CBA), which includes the details of their wages, work hours, and conditions of employment.  Many such Agreements contain provisions regarding workplace safety standards, which may apply to the current health crisis precipitated by COVID-19.  Most CBAs also provide employees governed by them with various types of paid and/or unpaid leave, which may be available to employees affected by COVID-19.  If your job is covered by a CBA, this should be the first place you look for guidance on options available to you if you are concerned about your working conditions or if you believe that you need some type of leave from work.

Many unions have negotiated, are in the process of negotiating, or soon will negotiate Memoranda of Agreement/Understanding to address workplace issues more specific to COVID-19-related concerns, which are not already addressed by a CBA.  Such agreements may be necessary to supplement or amend aspects of CBAs, which did not contemplate work taking place under pandemic conditions at the time those agreements were drafted.

If you are represented by a union and you have questions or concerns regarding your working conditions, you should first reach out to your union representative.

Labor Law Rights of Non-Union Employees

The same laws that protect the rights of workers to organize and form unions also provide protections to employees who act together to affect their wages, hours, or working conditions.  When non-union workers act as individuals or express individual concerns to their employers, their actions do not have the same level of protection accorded to non-managerial/supervisory workers who act as a group.  Examples of collective action include meeting as a group with management, making collective demands for safe working conditions or risk-related compensation, or other forms of appeal by employee groups (not as individuals) that address COVID-19 concerns.  Collective action can provide a safer way than individual action for at-will, nonunion employees to address concerns that their employers may not be following reopening guidelines and employee safety guidelines issued by CDC, OSHA, or the Pennsylvania Governor’s Office and Department of Health.

There are limits on what types of collective activities qualify for legal protection.  For more information, please contact an attorney in the Rothman Gordon Labor Law department.

Employer Operating Requirements & Guidelines and How to File Complaints

Employees may access vast amounts of information about what their employers are supposed to be doing in order to reopen safely.   Employees should make sure that they review the latest information publicly available.  Relevant information may be found at the federal, state, and county levels of government.  For a summary of these resources, including information on how non-compliant businesses may be reported to appropriate authorities, see our article on Safe Reopening Guidelines.

Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020 and expires on January 1, 2021.   The Act, which contains multiple separate pieces of legislation, provides eligible employees with up to 80 hours of paid sick leave and another ten weeks of paid expanded Family Medical Leave, among other things.  Paid sick leave is available for eligible employees who are unable to work or telework for one of the COVID-19-related qualifying reasons, while the expanded Family Medical Leave is available for eligible employees unable to work or telework due to the need to provide childcare.  If you are unable to return to work, you may be eligible for one or both of these types of leave.  For more information on FFCRA and the eligibility requirements, please see Employment Aspects of Family First Coronavirus Response Act.

Family and Medical Leave Act

While the FFCRA expanded the Family and Medical Leave Act (FMLA) in certain ways to provide paid FMLA leave, as mentioned above, employee leave rights under FMLA that existed prior to COVID-19 continue to be available.  Generally, employees of covered employers are eligible for up to 12 weeks of unpaid, job-protected leave under FMLA each year in which they qualify.  This leave may be used concurrently with another type of paid leave.  Employees who are unable or uncomfortable returning to work may be entitled to FMLA leave.

For more information on FMLA, please click here.

Americans with Disabilities Act

Employees with disabilities who feel that they cannot return to work or perform their duties as they would under normal circumstances due to COVID-19 may be entitled to a workplace accommodation pursuant to the Americans with Disabilities Act (ADA).  In general, an employee with a recognized disability is entitled to a reasonable workplace accommodation, so long as the employee still is able to perform the essential function of his/her job with the accommodation and the accommodation does not pose an undue hardship to the employer.  It is possible that an employee may have a disability that did not entitle him/her to a workplace accommodation prior to COVID-19 but would now be entitled to one, and vice versa.  It is the obligation of an employee seeking an accommodation to communicate this to his/her employer.  Doing so triggers a requirement of the employer to engage in an interactive process with that employee in order to explore whether any accommodation would be appropriate.  Whether an employee is eligible for an accommodation depends on his/her and his/her employer’s specific circumstances.  For more general information on the ADA, please click here.

If you are concerned about returning to work, make sure to seek proper advice from your union representative and/or an attorney before raising any of the legal issues mentioned above with your employer.

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